Is Domestic Violence Inherently Gendered in The Law
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Is Domestic Violence Inherently Gendered in The Law

Promoted by National Criminal Lawyers.

Intimate terrorism, domestic violence, family violence and abuse…what is the first thing that comes to mind? Don’t overthink it, what is the initial image?

Whether male, female or gender-neutral, most would have pictured a woman as a victim and a man, usually her partner, husband, son, or brother, as a perpetrator. When one thinks of domestic violence, for the most part the image conjured is a woman as a victim of male violence.

We spoke to Michael Moussa, Principal Lawyer at National Criminal Lawyers ®, about the topic, and he finds that this is generally the case. Most of his relevant cases see the male as perpetrator, and female as victim. However, he states ‘there is the occasional situation where the client is a female perpetrator.’

Discussions on family violence have been gendered from the outset. Violence against women is real and terrible. The family law recognises children as victims of family violence whether they experience it directly or indirectly. In a criminal context, it is an aggravating factor on sentence if children are victims or present during the violence. Exposure can be life changing, affecting everything from their ability to function in a relationship to fostering domestic violence tolerance or potentially becoming abusers themselves.

WHAT IS DOMESTIC VIOLENCE?

The Australian Law Reform Commission (ALRC) published a report on the national legal response to family violence in 2010. The ALRC outlines the definition of domestic violence as:

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an abuse of power perpetrated mainly (but not only) by men against women in a relationship or after separation. It occurs when one partner attempts physically or psychologically to dominate and control the other. Domestic violence takes many forms. The most commonly acknowledged forms are physical and sexual violence, threats and intimidation, emotional and social abuse and economic deprivation.

A VERY REAL ISSUE

The media bombards us with images of bruised and beaten women. Often, the Prospection in the Local Court tender these beaten women for the magistrate or jury to see which puts unease in anyone’s mind. Often however, these images are relevant and are always admissible. There are daily accounts of the evils that men perpetrate on women, and too often reports of their murders by those closest to them. The latest one being the murder of dentist Preethi Reddy which Mr Moussa has discussed in his blog found here.

The #MeToo movement generated a very necessary worldwide dialogue about a culture of sexual exploitation and abuse. Public outrage has fuelled a war on “toxic masculinity” and “masculine entitlement” resulting in legislative change and increasingly draconian penalties. The focus has been mainly upon men as perpetrators.

STRUGGLES FACED BY MEN

But what about men? Men can be traumatised too. They can be victims of violence but also of tactical allegations.They are told from very early on that “boys don’t cry” or admit weakness, frailty or fear. Reporting is a problem enough for women who are not under that sort of social pressure. Anecdotally, even the police deal with allegations of domestic violence from male victims differently to women.

It is prudent to state that the real and potential struggles of men in relation to domestic violence against them, in no way, shape, or form, detracts from the history of systemic inequality and abuse against women. It is important, however, to address the fact that men do suffer also. To perpetrate any kind of emotional or physical abuse is against the law, regardless of gender.

PHYSICAL OFFENCES AGAINST THE PERSON

The worst possible charges attributable to domestic violence include murder and assault causing death; and these carry serious penalties. Murder, under section 18 of the NSW Crimes Act 1900 (NSW) (“The Act”), carries a maximum of life imprisonment. Assault occasioning death, under section 25A of the Act, carries 20 years, or 25 years’ imprisonment, if committed whilst intoxicated. The maximum penalty for intentionally wounding or grievous bodily harm as per section 33 of the Act is 25 years’ imprisonment. An assault occasioning actual bodily harm under section 59 of the Act holds a maximum sentence of 5 years’ imprisonment.

If a person violates their Apprehended Violence Order, they are up for two years’ imprisonment, and/or a $5500 fine.

WHAT HAPPENS WHEN MEN FACE ABUSE?

Michael Moussa has worked solely in criminal law for several years, and in his experience, men tend to be reluctant to “get her into trouble” or not want their partner to have a criminal record. They do not have the support of services like the Women's Domestic Violence Court Advocacy Services (WDVCAS) at Court. They are inclined to shy away from giving evidence against a partner for fear of losing the relationship.

According to Family and Community Services there are distinct forms of abuse experienced by men. These include physical assault such as slapping, but what might be surprising to some, is domineering behaviour by women; making all financial decisions on behalf of the man, acting possessive or jealous, belittling and criticising them also. Reasons men do not leave abusive relationships include shared children and feeling too ashamed to leave. This is where toxic masculinity comes in; an image is portrayed of a strong man, and if a man felt that he could not deal with his partner, that image would be tainted. There are a few support services for men, but again, perhaps due to these stigmas, they are not as well-known as female support services, these are; Men’s Referral Service, MensLine Australia, and 1800RESPECT.

COMMON PERCEPTIONS/MISCONCEPTIONS

A ‘traditional’ view of domestic violence is the abuser would almost always be the husband and the victim, his wife. In cases where women are perpetrators, the violence is still seen as situational, reactional violence in protection of themselves or their children.

Often, people think of intimate violence as purely physical: hitting, kicking, punching and spitting. However, intimate violence is about control – it also involves psychological and emotional abuse, such as isolating victims financially and socially; degrading them; damaging property; sexually and verbally abusing them and making them ‘walk on eggshells’.

The 2016 Victorian Royal Commission into Domestic Violence made numerous recommendations about increasing support and resources for male victims without reducing resources for female victims.

EXPERIENCE AS A LAWYER

From Michael Moussa’s perspective;

“the impact of intimate violence on a male client tends to show up differently from its effect on women. Generally, men struggle to talk about it and there is a need to listen closely. It is not always the reason the client presents in the office; it can be a family law wrangle over parenting or a low-flying Apprehended Domestic Violence Order as the opening shot in family proceedings or simply facing criminal charges. There is a need to screen for violence discretely in male clients as well as female.”

Moussa provided us with a case study – “B”(a male). He was going through family law difficulties with his partner “J” (A female).” J, a computer guru, was the primary ‘breadwinner’. Initially, B simply wanted parenting advice but as he told his story, he described deeply controlling characteristics that raised red flags. It was hard for him to speak about it, but gentle prompting revealed she had attacked him with scissors several times in the presence of their son. He made the usual excuses and was afraid the police would not take him seriously. He was in real danger but did not want to jeopardise the relationship or his wife’s job, which was at risk. Ultimately, she was charged.

THE RELATIONSHIP BETWEEN FAMILY AND CRIMINAL LAW RE: FAMILY VIOLENCE

According to the ALRC, only in Tasmania is emotional abuse and intimidation defined as a criminal offence. In some states, emotional or psychological abuse is referred to as a form of family violence. 

The Commonwealth Family Law Act 1975 outlines a definition of family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ under section 4AB(1). The section then goes on to list examples of behaviour that come under the definition, such as physical assaults but also ‘repeated derogatory taunts’, ‘unreasonably denying the family member the financial autonomy that he or she would otherwise have had’, and ‘preventing the family member from making or keeping connections with his or her family, friends, or culture’ (section 4AB(2)).

WHAT’S THE VERDICT?

One can see that the law is not blind to emotional harm a family member might inflict on another. Notably, the law does not outline a specific gender as perpetrator or victim. The law does not prejudice against one gender. In practice, however, the social stigmas outlined in this article, become obstacles for men in seeking out help.

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